Religion and law round up – 11th August

And as England retains the Ashes and we slide yet deeper into summer torpor…

Forced marriage

We noted the current weaknesses in the law relating to forced marriage and in particular ObiterJ’s  recent review of Bedfordshire Police v RU & Anor [2013] EWHC 2350 (Fam). Coincidentally, two days after we put up the post, Foreign Office minister Mark Simmonds made a statement in which he warned that “The school summer holidays are the time when young people are at the highest risk of being taken overseas for a forced marriage” and said that anyone at risk of being forced into marriage should contact the FCO/Home Office Forced Marriage Unit for support, whether at home or already abroad.

Ministers of religion and employment rights

The decision of the East London Employment Tribunal in Hasan v Redcoat Community Centre, in which the ET decided that an imam was an employee of the mosque, indicated once more that issues of clergy employment still depend critically on the individual facts of the case. In President of the Methodist Conference v Preston [2013] UKSC 29 Lord Sumption JSC declared at para 26 that the correct approach to deciding whether or not an individal minister is employed “… is to examine the rules and practices of the particular church and any special arrangements made with the particular minister”. Post-Preston, the ET did just that and decided that Mr Hasan was an employee – which suggests that, in spite of some rather ill-informed media comment when the judgment in Preston was handed down, there is still no hard-and-fast rule about who is an employee and who is not.

Prayers at council meetings in Wales

Readers may recall the furore raised by the judgment in National Secular Society & Anor, R (o a o) v Bideford Town Council [2012] EWHC 175 (Admin). Subsequently, the judgment led to a degree of doubt as to whether Welsh councils could legitimately hold prayers. The matter was the subject of a discussion in the NAW’s Petitions Committee and opinions were divided.

The Welsh Government has now roused itself out of its estivation to issue a Cabinet statement on Holding Religious Ceremonies as part of the Official Proceedings of Local Authorities. The guts of the statement is as follows:

“The general power of competence does not apply to Councils in Wales. There has been a perception this has, in some way, disadvantaged Councils in Wales, in their ability to hold prayers as part of their official business. It has been seen, by some, as a matter which needs rectifying through legislation. The Welsh Government considers this to be misleading and does not intend to bring forward legislation on this point. If there are restrictions to how Councils may approach this matter, they arise from the general legal requirements as to equality and non-discrimination, not from any apparent limit on the Councils’ statutory powers.

In the view of the Welsh Government, it is a matter for a Local Authority to consider on competent legal advice, whether the circumstances in its individual case make it appropriate to hold prayers as part of a formal meeting. Generally speaking, there is nothing to prevent like-minded Councillors from saying prayers – or sharing a moment of quiet reflection – immediately before moving on to official business, rather than as a formal part of business or in a way as to affect the formal business”.

In other words, “nothing to do with us, Guv”.

Jewish legal studies at UK universities

We received an interesting e-mail from Professor Bernard Jackson of Liverpool Hope University to which was attached a flyer about its MA in Jewish Studies to commence in October 2013. The course builds on the existing Postgraduate Certificate and includes three modules focusing particularly on legal issues:

  • Law and Narrative in the Hebrew Bible, which examines the law of homicide, sexual relations and inheritance “as reflected in both laws and narratives, including the Book of Ruth; forms of law giving and adjudication as reflected in both laws and narratives; narrative elements in the laws themselves; and the relationship between law, narrative and theology in the Hebrew Bible”;
  • Conversion in and out of Judaism, which looks at the historical development of the concept of conversion into Judaism, the various reasons for converting either way and the halakhic  consequences of either conversion, together with such issues as mixed marriages, forced conversions and conversion of minors; and
  • Law, Religion and Judaism, which explores law and religion in the Hebrew Bible and the New Testament as reflected in both law and narrative, the historical development of Jewish law in post-biblical times, the history of Jewish family law, the relationship between law and religion in the State of Israel and the relationship between law and religion in England with particular reference to Jewish issues.

The Solicitors Regulation Authority has recognised the Law, Religion and Judaism module for CPD and the Department also intends to offer for CPD the module on Conversion. A distance-learning version of the course is under development.

A little gentle internet searching suggests that the courses at Liverpool Hope, if not actually unique, are still very unusual. Oxford, UCL and Manchester all have postgraduate degree courses in Jewish Studies as, of course, do Leo Baeck College and what is now the London School of Jewish Studies (formerly Jews’ College). But courses with a sufficiently strong legal element to attract CPD points seem rare – though to our surprise we did come across this one, available on-line from Brooklyn NY.

Human rights: recent developments

The UK Human Rights Blog has published a case table incorporating the majority of the reported human rights cases in the UK back to November 201, including a short description of the case and a link to an article in which it was reviewed.  The table was created and is maintained by Hannah Manson, a law student and committee member of the Human Rights Lawyers Association, and daily updates containing new cases are posted here.

Obiter J reports that the British Institute of Human Rights has just published a four-page factsheet containing summaries and links relating to the procedures and achievements of the European Court of Human Rights. The ECHR and the Human Rights Act 1998 will certainly need all the support they can get in the face of mounting Conservative opposition to the Convention and the Court; and the Daily Telegraph reports that charities are planning an autumn offensive against Tory plans for reform of the Act.

However, we were slightly surprised that the BIHR’s Five ways the Court has helped improve protection of our rights included Eweida (summarised as “An employer’s policy banning the wearing of a cross necklace for corporate image reasons was held to infringe rights to freedom of thought, conscience and religion (Article 9)”). Eweida is important, certainly, but also exceedingly complicated; and its longer-term consequences are not yet predictable. In terms of protecting human rights across the board, we would have included Tyrer v UK [1978] ECHR 2, (which brought to an end judicial birching in the Isle of Man as violating Article 3 (inhuman or degrading treatment or punishment)) and Campbell and Cosans v UK [1982] ECHR 1 (which signalled the beginning of the end of corporal punishment in schools). But maybe they are now regarded as being of merely historical importance.

Richard III, King and car-park attendant

We noted the latest developments in the saga of the reburial of the remains of Richard III and that the Plantagenet Alliance, “the living, collateral descendants of King Richard III”, is seeking permission for judicial review of the decisions of the Ministry of Justice and the University of Leicester in relation to consultations on reburial. We continue to wonder on what basis the members of the Alliance can be presumed to have any particular locus standi, bearing in mind the conclusion of the Court of Appeal in Rudewicz, R (on the application of) v Secretary of State for Justice & Ors [2012] EWCA Civ 499 on the proposed exhumation and reburial of the remains of a Polish Roman Catholic priest, Father Jarzebowski.

If Lord Neuberger MR could not see how Article 8 ECHR (private and family life) was engaged in the case of a first cousin once removed because “… Ms Rudewicz and the Priest … never met, and she is a distant relative”, we cannot for the life of us see how it can be engaged in the case of descendants of someone who died in 1485. After all, they, too, never met; and as Dr Turi King of Leicester University’s Department of Genetics points out, “We are all related to Richard III. It’s just a matter of degree”.

Another dead King?

On 8 August it was reported that a local group, Hyde900, has been granted  permission “to carry out scientific investigations on human remains, recovered from St Bartholomew’s Church earlier this year, to ascertain whether or not they belong to King Alfred”. An earlier post described the exhumation of bones from an unmarked grave in the churchyard of St Bartholomew, Winchester “to counter the risk of theft from or vandalism to the grave following widespread speculation about the significance of its contents”.

However, unlike Richard III for whom a fully articulated skeleton was discovered, the Winchester remains included five skulls whose place of burial had been moved on at least one occasion.  In reaching its decision, the Winchester consistory court took account of the viewsWessex Flag, IMG_2723 of a number of statutory consultative bodies, such as the Church Buildings Council. The decision gives Hyde900 the responsibility of  managing any scientific investigations, as well as complying fully with any conditions set out by the Chancellor. The Diocese Press Release states that the remains will stay in the care of the Church and the Consistory Court until they are reinterred.

The decision is not altogether unexpected and is consistent with the Church’s presumption against disturbance of remains: the exhumation was necessary to preserve their security, and the proposed examination will provide information on the most appropriate permanent resting place for each of the sets of bones that were exhumed. We will publish a more detailed account once the report of the Consistory Court becomes available.

1 thought on “Religion and law round up – 11th August

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